NOW COMES the plaintiff, JAMES ANDERSEN, Independent Administrator for the Estate of DANIEL ANDERSEN, Deceased, by and through his attorneys, Rubin & Machado, Ltd., and for his Response to defendant, GALBREATH, INC.'s (hereinafter “GALBREATH”) Motion for Summary Judgment, states as follows:

Procedural Backround

Defendant GALBREATH has filed its motion for Summary judgment and Memorandum in Support, along with its Motion to Strike certain opinions of plaintiff's 213(f)(3) opinion witness, Christopher Ferrone, based solely on the argument that any defect in its “roll-off” truck merely furnished a condition that allowed the events leading to the death of plaintiff's decedent to occur. As such, GALBREATH argues, any defect in the “roll-off” truck is not a proximate cause of the death of DANIEL ANDERSEN as a matter of law. In order to make this argument GALBREATH ignores decades of Illinois precedent in the area of strict productliability as well as Supreme Court rules regarding evidence that may be considered in ruling on motions for Summary Judgment.

As to the latter, GALBREATH attaches to its Memorandum in Support of its Motion for Summary Judgment two documents which may not be considered by this Court in ruling on this Motion. 735 ILCS 5/2-1005 provides that the form of affidavits in support or opposition to a Motion for Summary Judgment are to be as provided by rule. 735 ILCS 5/2-1005(e). Supreme Court Rule 191(a) provides in pertinent part

Affidavits in support of and in opposition to a motion for summary judgment under section 2-1005 of the Code of Civil Procedure [ 735 ILCS 5/2-1005], affidavits submitted in connection with a motion for involuntary dismissal under section 2- 619 of the Code of Civil Procedure [ 735 ILCS 5/2- 619 ], and affidavits submitted in connection with a motion to contest jurisdiction over the person, as provided by section 2-301 of the Code of Civil Procedure [ 735 ILCS 5/2-301], shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto. If all of the facts to be shown are not within the personal knowledge of one person, two or more affidavits shall be used.

It is well established that unsigned, unsworn and uncertified statements could not be considered to be affidavits in support of a defendant's motion for summary judgment. Cato v. Thompson, 83 111. App. 3d 321, 403 N.E.2d 1239 (2 Dist. 1980). Only facts offered in affidavit form will be considered in support of such motion. Fooden v. Board of Governors (1971), 48 111. 2d 580, 272 N.E.2d 497; Schaefer v. Sippel (1978), 58 111. App. 3d 816, 820, 374 N.E.2d 1092, 1096. Thus, the report of the OSHA investigator, attached to GALBREATH's Motion for Summary Judgment as Exhibit “E” may not be considered by this Court for purposes of ruling on the instant Motion.

Likewise, the Affidavit of Michael W. Rogers may not be considered by this Court for purposes of ruling on the instant Motion. On July 1, 2002 GALBREATH filed its Amended Answers to Interrogatories Propounded by Plaintiff (Attached hereto as Exhibit “1”) disclosing Michael W. Rogers, P.E. as its opinion witness pursuant to Illinois Supreme Court Rule 213 along with the opinions of Mr. Rogers and the bases therefore. Said disclosure contains no mention of any of the opinions or bases contained in the affidavit of Michael Rogers attached to GALBREATH's Memorandum as Exhibit “F”. Indeed, to the extent said affidavit is in compliance with Supreme Court Rule 191(a) (which plaintiff does not concede) it contains entirely new opinions which have never been previously disclosed based on tests allegedly performed by Mr. Rogers which, likewise, have never been disclosed to the plaintiff. Indeed, the 213 disclosures provided to plaintiff indicate that “Mr. Rogers has not prepared any reports in connection with this matter.” Mr. Rogers' affidavit indicates that he performed “time studies” of a lowering hoist on an exemplar roll-off truck on March 6, 2002, four months prior to GALBREATH's disclosures of his opinions. Apparently, the results of Mr. Rogers' “time studies” were memorized by him as no record of the results of those studies has ever been produced. Clearly, GALBREATH has failed to disclose the opinions of Mr. Rogers which are contained in the affidavit attached as Exhibit “F” pursuant to Supreme Court Rule 213. As such, the Affidavit of Michael W. Rogers must be striken.

Factual Background

As defendant points out in its Memorandum, certain facts are undisputed. However, defendant's assertion of what those facts consist of is far too broad. In fact, the only relevant facts that are truly undisputed are that the hydraulic hose on the GALBREATH roll-off truck being driven by DANIEL ANDERSEN failed and that as a result of that failure the hoist lowered, killing DANIEL ANDERSEN.

At the time of the occurrence DANIEL ANDERSEN was alone, and the occurrence was unwitnessed. What is clear is that the hydraulic hose on the up-line ruptured, causing the hoist to begin to lose pressure and to descend. It is unclear when in the process of the descent DANIEL ANDERSEN became aware of the rupture of the hydraulic line. DANIEL ANDERSEN. apparently attempted to close the valve controlling the hydraulic line, at which time he was crushed by the hoist. Defendant contends that the fact that the actions of DANIEL ANDERSEN in attempting to turn off the valve controlling the hydraulic line would have had no effect on the lowering of the hoist is undisputed. Plaintiff's expert, Christopher Ferrone does not dispute this fact. (Dep. Of Ferrone p. 157) However, this is a red herring. The issue is what DANIEL ANDERSEN believed at the time of the occurrence. Defendant has adduced no evidence that establishes that DANIEL ANDERSEN knew, or should have known, that his actions in attempting to turn off the hydraulic line would not have the desired result, i.e. stopping the descent of the hoist.

What GALBREATH ignores in its recitation of the undisputed facts is the opinions of plaintiff's expert as to the cause of the occurrence. Christopher Ferrone was retained by the plaintiff's employer, B.F.I., to investigate the cause of the occurrence. On February 17, 2000, two days after the occurrence, Mr. Ferrone inspected and photographed the roll-off truck involved in the occurrence. On February 18, 2000 he issued his report with his findings as to the cause of the occurrence. Plaintiff has tendered Mr. Ferrone as his 213 opinion witness in this matter. Mr. Ferrone has opined that the failure of the hydraulic hose on the upline was due to the geometry of the line as built by GALBREATH, (Dep. Of Ferrone at pg. 76), and that there is no evidence that B.F.I. or anyone else ever replaced or changed this particular hydraulic hose. (Dep. Of Ferrone at pgs. 137- 141) Mr. Ferrone has also opined that based on the fact that the roll-off truck had been in service for no longer than one year, the hose should not have failed within this time period. (Dep. Of Ferrone at pgs. 140-142).

Standard to be applied

Summary judgment is a drastic means of disposing of litigation and should be used only if the right of the movant to relief is clear and free of doubt. Bier v. Leanna Lakeside Property Ass'n, 305 111. App. 3d 45, 50, 711 N.E.2d 773, 777-78, (1999). Summary judgment is appropriate if “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c). Golla v. General Motors Corp., 167 111. 2d 353, 358, 657 N.E.2d 894, 897(1995) Where reasonable persons could draw divergent inferences from undisputed material facts or a dispute as to a material fact exists, summary judgment should be denied. Allstate Insurance Co. v. Smiley, 276 111. App. 3d 971, 977, 659 N.E.2d 1345, (1995). The purpose of summary judgment is not to try a question of fact, but rather to determine if such a question exists. Golla, 167 111. 2d at 358, 657 N.E.2d at 897. A triable issue exists where there is a dispute as to material facts, or when the facts are not in dispute, where reasonable persons might differ in drawing inferences from those facts. Rothner v. Mermelstein, 219 111. App. 3d 502, 506, 579 N.E.2d 1022, 1026, (1991). What constitutes the proximate cause of an injury is ordinarily a question of fact to be decided by the jury. It can be a question of law only where there can be no reasonable differences in the inferences to be reasonably drawn from the undisputed facts. Lindenmier v. City ofRockford (1987), 156 111. App. 3d 76, 90, 508 N.E.2d 1201.

Plaintiff Has Raised An Issue Of Fact As To Proximate Cause

Defendant raises a single basis in support of its Motion for Summary Judgment; that of “cause vs. condition”. Defendant argues that, as in the cases of Lindenmier v. City ofRockford, Novander v. City of Morris, and Suzik v. Sea-Land Corp., that its conduct did nothing more than furnish a condition which made the occurrence possible. This argument is, in effect, an assertion that the conduct of DANIEL ANDERSEN was an intervening cause sufficient to break the chain of conduct between GALBREATH and the occurrence. An examination of the law applicable to this cause as well as the facts of this case demonstrates that defendant's argument is based on a twisted interpretation of the law of strict liability and foreseeability.

Thus in order to determine whether the defect in the roll-off hoist was a proximate cause of the death of DANIEL ANDERSEN, one must engage in an analysis of the facts surrounding the occurrence under this two pronged test. Defendant makes no attempt to analyze the facts of the instant case under this test, but rather, simply jumps to the conclusion that the conduct of DANIEL ANDERSON in placing himself under the hoist breaks the causation chain and, thus, GALBREATH cannot be liable. An analysis of the facts and law reveals that this conclusion is erroneous.

First, it cannot be reasonably argued that the defect in the roll-off hoist, i.e. the failure of the hydraulic hose, was not a cause in fact of the occurrence at issue. Two tests are used when considering cause in fact: the “but for” test, where a defendant's conduct is not a cause if the event would have occurred without it; and the “substantial factor” test, in which a defendant's conduct is a cause “if it was a material element and a substantial factor in bringing the event about.” (Thacker v. UNR Industries, Inc. (1992), 151 111. 2d 343, 354-55, 603 N.E.2d 449 at 449-55) Garrett v. Grant School District No. 124, 139 111. App. 3d 569, 487 N.E.2d 699(2nd Dist. 1985) ; Prosser notes the rule derived by courts commonly known as the “but for” test by describing simply “The defendant's conduct is not a cause of the event, if the event would have occurred without it.” (Prosser, Torts sec. 41, at 238-39 (4th ed. 1971).

Would the death of DANIEL ANDERSON have occurred absent the defect in the roll-off truck? Clearly, the answer is NO. Without the rupture of the hydraulic hose, even had DANIEL ANDERSON placed himself under the hoist, he would not have been crushed. Thus, the first prong of the test is satisfied.

As such, the issue in the instant case is whether the defect in the roll-off hoist is the legal cause of the death of DANIEL ANDERSON. In Lee v. ChicagoTransit Authority (1991), 137 111. 2d 665, 571 KE.2d 149 the Illinois Supreme Court stated:

Legal cause ‘is essentially a question of foreseeability: a negligent act is a proximate cause of an injury if the injury is of a type which a reasonable man would see as a likely result of his conduct.” (See Masotti v. Console (1990), 195 111. App. 3d 838, 845, 142 111. Dec. 551, 552 N.E.2d 1292.) Thus, an injury will be found not to be within the scope of the defendant's duty if it appears “highly extraordinary” that the breach of the duty should have caused the particular injury. Restatement (Second) of Torts § 435(2), at 449 (1965).

An review of defendant's arguments in the instant case demonstrates that it was indeed foreseeable that an individual would place himself under the hoist in order to work on the roll-off truck. Defendant argues that the conduct of DANIEL ANDERSEN in placing himself under the raised hoist was unforeseeable as a matter of law. In support of this argument defendant cites the fact that DANIEL ANDERSEN ‘ignored prominent and adequate warnings against placing himself underneath the raised hoist.” (Defendant's Memorandum at pg. 10 § IV) The mere posting of the warnings regarding working under the hoist demonstrates the foreseeability of that very conduct. See e.g. Lee v.ChicagoTransit Authority (1991), 137 111. 2d 665, 571 N.E.2d 149. How can defendant argue that the conduct was unforeseeable as matter of law if it warned against this very conduct. In addition, plaintiffs opinion witness, Christopher Ferrone, has opined that it was foreseeable that a driver in the field who experienced a failure of the type experienced by DANIEL ANDERSEN would place himself in the same position as did DANIEL ANDERSEN in order to attempt to deal with that failure. (Dep. Of Ferrone at pg. 147).

Defendant's Argument Ignores Plaintiff's Product Liability Theory

Nowhere in the instant motion does defendant deal with the fact that plaintiff's complaint sounds in both strict liability and negligence. Other than a passing reference to the fact that “the concept of proximate cause is the same in cases of negligence and strict liability in tort” (Defendant's Memorandum at pg. 6, § 111 citing Lindenmier v. City ofRockford) defendant does not deal with the strict liability theory as alleged by the plaintiff. Although the Lindenmier Court references the fact that a cause of action was brought under a strict liability theory against one of the defendants, no details are given regarding that theory in the opinion. Rather, the entire opinion deals with the issues of negligence.

In Lindenmier the plaintiff sought to hold various defendants responsible for injuries sustained by the plaintiff as a result of a collision between plaintiff's vehicle and an oncoming vehicle while plaintiff was attempting to make a left turn. At the time of the occurrence, plaintiff had a solid green traffic signal. 156 111. App. 3d at 80-81. In affirming the trial court's grant of summary judgment on the “issue of cause vs. condition” the Lindenmier Court held:

Wilma Lindenmier's decision to turn was based strictly on her own assumption that it was safe to do so when, in fact, she admitted she had no way of knowing whether oncoming traffic actually had a red light and in spite of the fact she knew a full green light meant she had to yield the right-of-way. No condition of the traffic signals directed or permitted her to make that left-hand turn.

156.111. App. 3d at 90.

We further find defendants' conduct was not the legal cause of the plaintiffs' injuries. It was not reasonably foreseeable as a matter of law that Mrs. Lindenmier would believe a protected left turn could be made on a full green signal in the absence of green turn arrows or other such indicia of traffic regulation. The test is whether the first wrongdoer might reasonably have anticipated the intervening cause as a natural and probable result of its own wrongdoing. (Boylan v. Martindale (1982), 103 111. App. 3d 335.)

We do not believe the defendants reasonably could have anticipated that would disregard the acknowledged, statutorily prescribed response to the display of full, circular green traffic lights in favor of the utterly ambiguous meaning of the presence of a single stopped car on the opposite side of the intersection in deciding to turn left in front of another oncoming car.

Id. at 91-92.)

In Novander the plaintiff sought to hold the City responsible for injuries sustained in a motorcycle accident when a truck being driven by another defendant crossed into the plaintiffs lane of travel, apparently due to the presence of potholes on the street. 181 111. App. 3d at 1079. In finding that the presence of the potholes was, at most, a condition which made the accident possible the Novander Court held:

Thus, Pearson was not forced to drive in the wrong lane, but chose to drive in the wrong lane. While it is commonplace that drivers often dodge potholes, neither the City nor Continental could reasonably anticipate that Pearson would take such evasive actions in the face of oncoming traffic. Timm Pearson's acts constitute the type of subsequent, independent act which becomes an effective intervening cause, breaking any causal connection between the City's and Continental's alleged negligence and the accident.

Novander , 111. App. 3d at 1079-1080.

Finally, in Suzik v. Sea-Land Corp., the Seventh Circuit Court of Appeals affirmed a directed verdict in favor of defendants in an action brought by the plaintiff for back injuries suffered when he attempt to lift a propane tank which had broken loose from its supports on the truck he was driving. 89 F. 3rd 345 at 348. The tank weighed 335 pounds when full and 235 pounds when empty. The plaintiffs employer had established a procedure for dealing with the specific situation that occurred, i.e. the failure of the bracket holding the propane tank while a truck was on the road. In affirming the trial court's grant of directed verdict, the Suzik Court found noted the trial court's description of “Suzik's ‘completely irrational’ departure from procedure” established by the plaintiff's employer for dealing with the precise situation presented as its primary reason for finding the conduct of the plaintiff in attempting to lift the tank himself unforeseeable.

Interestingly, the Suzik Court reviewed Illinois law on the issue of deciding proximate cause as a matter of law, and stated:

[Plaintiff] is correct in noting that Illinois courts are reluctant to decide prox- imate cause as a matter of law; and he correctly notes that this reluctance is heightened when the issue of proximate cause turns on whether the plaintiff's conduct was a foreseeable result of a dangerous condition created by the defendant. See, e.g., Lee v. Chicago Transit Auth. , 605 N.E.2d 493, 502-03 (111. 1992), cert, denied, 508 U.S. 908 (1993) ; Jefferson v. City of Chicago , 646 N.E.2d 1305, 1308-09 (111. App. 1 Dist. 1995) ; Smith v. Armor Plus Co., Inc., 617 N.E.2d 1346, 1353 (111. App. 2 Dist. 1993J; Laflin v. Estate of Mills, 368 N.E.2d 522, 527 (111. App. 1 Dist. 1977). As expressed in these cases, this reluctance depends upon the principle that the defendant who creates a dangerous condition can reasonably foresee that the danger could give rise to certain kinds of injury- causing accidents. Whenever the injury-causing accident is of the kind that the defendant could reasonably foresee, proximate cause is a question for the jury. See, e.g., Lee , 605 N.E.2d at 503; Smith , 617 N.E.2d at 1353. The jury may consider the defendant's liability in these cases, even if the arguably foreseeable accident took place for the most far-fetched reasons.

Id. (Emphasis added).

Defendant attempts to analogize the conduct of the plaintiff in Suzik with that of plaintiffs decedent in disregarding the general warnings on the roll-off truck. This comparison is inappropriate. The plaintiff's employer in Suzik had established a specific procedure to deal with the problem confronted by the plaintiff therein, the failure of the bracket holding the propane tank while the driver was on the road. In contrast, the warnings on the roll-off truck are general, do not address the situation occurring in the field (as opposed to working on the truck in the shop) and do not contemplate a hydraulic hose failure in the field, such as occurred herein. As such, it cannot be said that DANIEL ANDERSEN's conduct was unforeseeable as a matter of law.

Defendant Is Attempting To Bar Plaintiff's Recovery Based On PlaintifPs Decedent's Alleged Assumption Of The Risk

In addition to the foregoing, plaintiffs complaint sounds, in part, in strict productliability. As many Illinois courts have noted when it with the tort of negligence;

Strict liability, on the other hand, while being a related tort, is based on an entirely different policy, that of placing the onus on the one who has placed a defective product in the stream of commerce and reaped the profit therefrom. (Strict liability, on the other hand, while being a related tort, is based on an entirely different policy, that of placing the onus on the one who has placed a defective product in the stream of commerce and reaped the profit therefrom. (Suvada v. White Motor Co. (1965), 32 111. 2d 612, 210 N.E.2d 182. Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 111. 2d 77, 338 N.E.2d 857; McCaffrey v. Illinois Central GulfR.R. Co. (1979), 71 111. App. 3d 42, 388 N.E.2d 1062.)

It is with this public policy in mind, that of placing liability on the party who has reaped profits from placing a defective product in the stream of commerce that GALBREATH's arguments must be viewed in the instant case. Although the concept of proximate cause is the same under either a negligence or strict liability theory, the conduct of the plaintiff (or in this case plaintiffs decedent, DANIEL ANDERSEN) must be analyzed differently under the different theories of liability. Under the strict liability theory the conduct of the plaintiff must be analyzed using the concept of assumption of the risk. Indeed, an analysis of defendant's argument herein reveals that it is defendant's position that DANIEL ANDERSEN assumed the risk of the hoist falling on him. It is well established that the determination of assumption of the risk is a question of fact for the jury on which the defendant carries the burden of proof. Williams v. Brown Manufacturing Co. (1970), 45 111. 2d 418, 261 N.E.2d 305.

In Hanlon v. Airco, 219 111. App. 3d 777, 579 N.E.2d 1136 (1st Dist. 1991) the court addressed the requirements for proving assumption of the risk in a wrongful death case and held:

In the context of a wrongful death case based on strict productsliability , the affirmative defense of assumption of the risk requires proof of a deliberate decision by the decedent to encounter a known risk, or a willingness on the part of the decedent to take a chance. ( Clark v. Crane Carrier Co. (1979), 69 111. App. 3d 514, 387 N.E.2d 871.) The courts apply a subjective standard rather than a reasonable person standard to determine whether the decedent was aware of the known risk. ( King v. American Food Equipment Co. (1987), 160 111. App. 3d 898, 513 N.E.2d 958.) However, a showing of the decedent's awareness is not limited to direct evidence but may also include circumstantial factors like the decedent's age, experience and knowledge; whether a decedent was aware of the known risk is to be deduced from the totality of the evidence. ( Campbell v. Nordco Products (7th Cir. 1980), 629 F.2d 1258.) In light of this, a determination of whether a decedent assumed the risk is ordinarily a question for the jury. ( Williams v. Brown Manufacturing Co. (1970), 45 111. 2d 418, 261 N.E.2d 305.) Finally, the affirmative defense of assumption of the risk no longer completely bars recovery; instead, the misconduct will be compared in the apportionment of damages. Coney v. J.L.G. Industries, Inc. (1983), 97 111. 2d 104, 454 N.E.2d 197.

Hanlon , 219 111. App. 3d at 784, 579 N.E.2d at 1141.

A review of defendant's argument establishes that it is the conduct of plaintiff s decedent, DANIEL ANDERSEN, which defendant contends relieves it from liability in the instant action. Defendant argues “in addition to disregarding his training, violating his employer's prescribed procedures and ignoring prominent and adequate warnings and instructions, Andersen defied common sense by placing himself under the hoist ...” (Defendant's Memorandum in Support of Motion for Summary Judgment at pg. 13) Clearly, argument is that plaintiff's decedent assumed the risk of the hoist failure. Defendant would have this action constitute a bar to plaintiff's recovery in the instant action. The Illinois Supreme Court has previously held that assumption of the risk is no longer a bar to recovery in strict liability actions in Illinois. Coney v. J.L.G. Industries, Inc. (1983), 97 111. 2d 104, 454 N.E.2d 197. More importantly, whether DANIEL ANDERSEN knowingly assumed the risk of the hoist failure is clearly a question of fact for the jury to decide under the facts and circumstances of the instant case.

Conclusion

A review of the arguments raised by GALBREATH in the instant matter leads to the single conclusion that significant questions of fact exist in the instant matter, precluding summary judgment.

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